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Presumably this was an action on a contract, , motion to vacate and set aside a judgment, and the defendant, plaintiff in error here, defendant appeals. Affirmed. contends that said contract was breached

Simons, McKnight & Simons, of Enid, for on the part of the plaintiff, defendant in plaintiff in error. error here, and for that reason the defend

A. G. Morrison, of El Reno, for defendant ant is not liable. It is not pointed out in in error. the brief wherein said contract was breached, and no authorities at all are cited to support WARREN, J. This is an appeal from an the contentions of plaintiff in error, and order of the district court of Canadian coun. under rule 26 of this court (165 P. ix) there ty, overruling a motion of the plaintiff in eris nothing presented to this court for review, ror to vacate and set aside a certain judg. and the appeal of this action should be dis- ment rendered in said court on December 7, missed. Henderson v. Todd, 91 Okl. 18, 215 1922. P 607; Hocker v. Rackley, 90 Okl. 83, 216

It appears that L. P. Elliott, as plaintiff, P. 151.

on February 20, 1922, filed his petition The plaintiff in error executed a supersede against the defendant, Goodwill Oil Compaas bond in this case in the sum of $500 with ny, seeking judgment on a contract for $229.S. A. Brown as surety, which bond was duly 80. On March 21, 1922, the defendant filed approved as shown by a certified copy there its answer in said cause, admitting the conof attached to the case-made. The defend-tract, but setting up various defenses there. ant in error has filed a motion herein for | to, among others that of payment. On De. judgment against the surety on said super-cember 7th there was filed an unsigned reply sedeas bond for the amount of the judgment to this answer. The filing mark shows Derendered in said cause; and said motion is cember 8th, but the recital in the case-made sustained, and judgment is hereby entered shows the reply to have been filed Decemagainst S A. Brown, surety on said bond ber 7th. for the sum of $339 32, with interest at 6 per

This appeal is by case-made also certified cent. from January 1, 1920, and the cost of | as a transcript. It appears that the case said action; but in no event shall said judg- was regularly assigned for trial in the disment, interest, and cost exceed the sum of strict court of Canadian county for December $500, and for which let execution issue. 7, 1922, and the case-made shows the fol

lowing entry on that day:
"6218. Elliott v. Goodwill Oil Co. This

on for trial as per assignment. GOODWILL OIL CO. V, ELLIOTT. Piff. announces ready for trial. Defendant ap(No. 14634.)

pearing not. One witness sworn & testimony

heard. Court redders judgment for plff, as per - (Supreme Court of Oklahoma. Nov. 18, 1924.) J. E.'' (Syllabus by the Court.)

On the trial the defendants failed to ap1. Pleading 412-Plaintiff's failure to file pear, one witness was examined to sustain

reply waived where defendant fails to call the allegations of the petition, and, no de court's attention thereto by appropriate fense being interposed or witness introduced pleading.

to prove the allegations of the answer, judy. Where no reply to defendant's answer has ment was rendered for the plaintiff for the been filed, and the defendant fails to call the amount proven. On December 19, 1922, the court's attention to this fact by an appropriate pleading prior to trial, the failure to 'tile defendant filed a motion to set aside the such reply will be deemed waived, and the court judgment and grant a new trial, alleging acmay treat the allegations of the answer as con- cident and surprise; that the judgment was troverted.

contrary to the law and evidence; that a 2. Appeal and error On957(1)--Judgment

jury was not waived ; that the case was not 139-Application to vacate default judgment properly triable on December 7th; that the discretionary; order on application to vacate defendant did not discover the case was set default judgment not disturbed, unless abuse for trial until December 13th following, and of discretion appears.

that defendant has a valid defense. On An application to vacate a default judg- | March 3, 1923, the said motion was denied by ment, and to be allowed to defend, is addressed the court and appeal therefrom to this court to the sound discretion of the court, and will perfected by case-made also certified as a not be disturbed on appeal unless it clearly appears that the court abused its discretion.

transcript. Olentine v. Alberty, 82 Okl. 9, 198 P. 296.

The plaintiff in error assigns the following

as error in the proceedings in the trial court: Appeal from District Court, Canadian (1) That the court below erred in renderCounty; James I. Phelps, Judge.

ing judgment by default in favor of the plain

tiff and against the defendant. Action by L. P. Elliott against the Goodwill

“(2) That under the issues joined by the Oil Company. From an order overruling a pleadings at the time of the rendition of such

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

case comes

(230 P.) judgment that defendant was entitled to judg- , the case-made, and we must assume that it ment on the pleadings.

was sufficient to support the judgment. “(3) That the defendant below was not in de

The action of the trial court will therefore fault, but had a full and complete answer on be affirmed. file in said cause, the allegations of which were not denied by the plaintiff, and which entitled defendant below to judgment on the pleadings.

MCNEILL, O. J., and JOHNSON, GOR"(4) That the court below erred in overrul. DON, NICHOLSON, and MASON, JI., ing and denying the motion of the defendant cur. below to set aside such judgment and for a new trial of said cause."

CON

In its argument on these propositions, the WOODYARD V. BURDETT et al. plaintiff in error fails to distinguish between

(No. 14953.). a judgment by default where the defendant has failed to file pleadings and a default (Supreme Court of Oklahoma. Nov. 25, 1924.) where there is a failure to appear and pre

(Syllabus by the Court.) sent proof of the allegations in the answer Appeal and error em 21, 300_Motion for new on the day regularly set for trial.

trial filed more than three days after rendi. The decisions amply sustain the argument tion of judgment cannot be considered on apof counsel where there is an attempt by the peal; appellate jurisdiction cannot be accourt to render judgment by default because quired by agreement of parties where motion of the absence of pleadings at a time when

for new trial not timely filed, the case is not regularly set for trial; the Where the motion for a new trial is not defendant in fact having answered. But the filed within three days after the judgment is failure of the defendant to appear with his rendered and the only grounds for a new trial

are errors of law occurring at the trial, and witnesses when the case has been regularly no showing is made that the moving party was set is an entirely different matter.

unavoidably prevented from filing the motion The failure of the defendant to sign his within the statutory time, this court does not, reply was immaterial in the present case, by appeal, acquire jurisdiction to consider and for the case went to trial on trial day with determine the questions presented by such moout a motion for judgment on the plead. tion, and such jurisdiction is not acquired by ings having been filed. In such a case the agreement of the parties. failure to reply will be deemed waived, Leach v. Altus State Bank, 56 Okl. 102, 155

Commissioners' Opinion, Division No. 1. P. 875.

Appeal from District Court, Payne Coun. [1] In the present case the defendant can ty; C. C. Smith, Judge. claim no rights at the trial, when he was Action by L. H. Woodyard against Mary E. not there to protect them. By his failure to Burdett and others. From a judgment for file an appropriate pleading, calling the defendants, plaintiff appeals. Dismissed. court's attention to the failure to reply be

Geo. F. Cunningham, of Stillwater, for fore the testimony was taken, he waived the plaintiff in error. failure to file a reply, if, in fact, the un Geo. A. Hoke, of Stillwater, for defendsigned instrument filed be considered a nulli.ants in error. ty. The defendant by failure to appear cannot question the action of the court in dis

RAY, C. Plaintiff in error asks reversal pensing with a jury, although it does not for errors of law occurring at the trial. affirmatively appear that a jury was not im- In his brief he sets out the following stipupaneled.

lation: In this case plaintiff in error admits in its motion that the court clerk sent its attor

"In the District Court in and for Said

County and State. neys the assignment of cases beginning Monday, November 27th, and ending Friday, De

"No. 6556. cember 15th, but only claims that there was “L. H. Woodyard, Plaintiff, v. Mary E. Bur. no special check calling counsel's attention

dett, W. S. Burdett, and C. R. Smith, to this case.

Defendants. Counsel explains that this case was overlooked in some unaccountable way.

"Stipulation and Agreement. [2] “An application to vacate a default "It is hereby stipulated and agreed by and judgment, and to be allowed to defend, is ad between Geo. Hoke, attorney of record for dedressed to the sound discretion of the court, fendants Mary E. Burdett and W. S. Burdett, and will not be disturbed on appeal, unless and Geo. F. Cunningham, attorney for the it clearly appears that the court has abused plaintiff, L. H. Woodyard, that the motion for its discretion."

a new trial filed by the said attorney plaintiff, Olentine v. Alberty, 82 Okl. l in the above-entitled action, may be heard and 9, 198 Pac. 296. No abuse of discretion is passed upon by the said court at the present shown in the present case.

term of said court, by and with the consent of The evidence in this case is not included in / said court, and the said attorney for the said

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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defendants hereby waives all objections to the, 2. Novation Coill-Evidence held not admis. hearing of said motion because the same was sible to establish novation, in absence of not filed within three days from the time that plea. the decision was rendered in said case by said It is error to permit the introduction of court, and agrees that said motion may be evidence tending to establish novation over obheard and decided by said court just the same jection, in the absence of such pleading. as if it had been filed within said statutory period. Geo. A. Hoke, Attorney for Defend. ants, Geo. F. Cunningham, Attorney for Plain Commissioners' Opinion, Division No. 2. tiff.

Appeal from District Court, Rogers Coun. "Filed Oct. 26, 1923."

ty; C. W. Mason, Judge. The motion for new trial was denied the

Suit by the McPike Drug Company against same day the stimulation was filed. The rec- Edward M. Williams and another. Judg. ord discloses that judgment was rendered on

ment for defendants, and plaintiff appeals. the 19th day of October, 1923, and the mo- Reversed and remanded, with directions. tion was filed October 23, 1923. The grounds Robson & Bayless, of Claremore, for plainfor a new trial set forth in the motion are tiff in error. identical with the assignment of errors. А

F. E. Riddle, of Tulsa, and Joe Chambers, new trial was not asked for newly discovered of Claremore, for defendants in error. evidence. No showing of any kind or character was made that plaintiff in error was unavoidably prevented from filing the mo

LYONS, C. Plaintiff sued defendants to tion for a new trial within three days after recover a balance due on account. Defendthe judgment was rendered.

ants admitted the correctness of the account, This court, in a long line of decisions, has but pleaded payment. At the trial the des uniformly held that in the absence of a fendants offered evidence tending to estabshowing that the moving party had been un- lish the following state of facts, to wit: A avoidably prevented, the trial court, except sale of the property (which consisted of a for newly discovered evidence, cannot con- drug store stock), upon the condition that sider a motion for new trial filed more than all of the creditors would accept 50 per cent. three days after the verdict is entered of the amount of their accounts from the Board of Commissioners of Pottawatomie purchaser as payment in full. The specific County v. Grace, 23 Okl, 35, 99 P. 653; Eg- plea of novation does not appear in the angleston v. Williams, 30 Okl. 129, 120 P. 944; swer The affirmative defense pleaded as Joiner v. Goldsmith, 25 Okl. 840, 107 P. 733; new matter was payment. Allen v. Gates, 38 Okl. 408, 134 P. 51 ; West [1] The rule is that a novation is in the ern Coal & Mining Co. y. Tulloss, 43 Okl. nature of a release or discharge, and is new 298, 142 P. 1035; Ewert v. Wills et al., 72 matter, which must be specially pleaded. Okl. 23, 178 P. 87; Watkins Medical Co. v. Temple et al. v. Teller Lumber Co., 46 Colo. Lizar et al., 78 Okl. 302, 190 P. 552; Southern 497, 106 P. 8; Martin v. Leeper, 48 Okl. 219, Surety Co, v Hatch, 89 Okl. 76, 213 P. 728. 149 P, 1140, the syllabus of which is as folIn Roberts v. Seals, 43 Okl, 467, 143 P. 199,

lows: it was expressly held that "an agreement of "The requisites of a novation are a previous counsel cannot work to effect an extension valid obligation, an agreement of all the parbeyond the time specified in the statute.” ties to a new contract, the extinguishment of

This court is therefore without jurisdic- the old obligation, and the validity of the new tion to review the errors of law occurring at the trial. No other questions are presented See, also, Gaar, Scott & Co. v. Rogers, 46 for consideration by the assignment of er- Okl. 67, 148 P. 161.

The case of Continental Gin Co. v. Arnold, The appeal should be dismissed.

52 Okl. 569, 153 P. 160, lays down the rule as follows:

"The term 'payment,' in its legal import, means the satisfaction of a debt by money or

the representative of money, and not by novaMcPIKE DRUG CO. V. WILLIAMS et al. tion, compromise, or accord and satisfaction. (No. 11772.)

"An accord and satisfaction' is an executed

agreement whereby one of the parties under(Supreme Court of Oklahoma. Nov. 25, 1924.) takes to give, and the other to accept, in sat

isfaction of a claim arising either from con(Syllabus by the Court.)

tract or tort, something other or different from

what he is, or considers himself, entitled to. 1. Novation Cl, 11-Novation is new matter;

"Accord and satisfaction, and other transnovation must be specially pleaded.

actions closely allied thereto, such as a comA novation is in the nature of a release promise agreement, executory accord, and or discharge, and is new matter, which must novation, in order to be available as a defense, be specially pleaded.

must be specifically pleaded." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

one."

rors.

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(230 P.)
[2] The learned trial court took the view císe time of the change has not been clearly
that the evidence offered was admissible un-

ascertained.
der the plea of payment, and, while the mat- | 4. Statutory provisions.
ter is not entirely free from doubt, we have

Section 6005, Revised Laws 1910, provides: concluded that in this case the evidence was "No judgment shall be set aside or new trial not admissible under such plea, and that it granted by any appellate court of this state was requisite for the pleader to have specif- in any case, civil or criminal, on the ground ically alleged a novation, in order to make of misdirection of the jury or the improper such evidence admissible. In the instant admission or rejection of evidence, or as to case the defense of novation was not plead- error in any matter of pleading or procedure, ed in the answer, and, since timely objection unless, in the opinion of the court to which ap.. was made to the introduction of evidence entire record, it appears that the error com

plication is made, after an examination of the tending to establish such defense, the trial plained of has probably resulted in a miscarcourt committed error in permitting such riage of justice, or constitutes a substantial vioevidence to be admitted.

lation of a constitutional or statutory right." The judgment of the trial court is there- 5. Indians em 18-Noncitizen heirs may inher. fore reversed, and the cause remanded, with it from estate of deceased Creek allottee directions to grant a new trial.

dying since admission of state.

The devolution of an estate of a deceased Creek allottee, having died since the admission

of Oklahoma into the union is governed by the SANDLIN V. TIGER. (No. 10143.) laws of descent and distribution of the state

of Oklahoma and noncitizen heirs may inberit. (Supreme Court of Oklahoma. Nov. 12, 1924.) (Syllabus by the Court.)

Commissioners' Opinion, Division No. 5. 1. Marriage en 40(4), 50(1)-Marriage prova

Appeal from District Court, Mcintosh ble by circumstantial evidence; presumed County; R. W. Higgins, Judge. that man and woman openly cohabitating and

Action by Barney Tiger, & minor, by his holding each other out as husband and wife have previously entered into actual marriage. legal guardian Robert McRay against Wil

From a judgMarriage may be proven by circumstantial liam A. Sandlin and others. evidence, and since the presumption is in favor ment for plaintiff the named defendant ap of marriage and against concubinage, the fact ! peals. Affirmed in part. that a man and woman have openly cohabited

Ralph Welch, Kirk B. Turner, and Martin together as husband and wife for a considerable length of time, holding each other out and E. Turner, all of Eufaula, and William A. recognizing and treating each other as such Collier, of Oklahoma City, for plaintiff in by declarations, admissions, or conduct, and are accordingly generally reputed to be such among Clark Nichols and H. B. Reubelt, both of their relatives and acquaintances, and those Eufaula, for defendant in error. who come in contact with them, may give rise to a presumption that they have previously en

FOSTER, C. This action was commenced tered into an actual marriage although there in the district court of McIntosh county of may be no direct testimony to that effect.

Oklahoma on the 17th day of March, 1917, by. 2. Marriage em 15 Common-law marriages defendant in error, Barney Tiger, by bis

valid after Arkansas laws extended to Indian legal guardian, Robert McRay, plaintiff beTerritory.

low, against the plaintiff in error, William After the laws of Arkansas were extended A. Sandlin, defendant below, to quiet title in force in the Indian Territory so as to ap- to certain lands described in the petition for ply to all persons therein, marriages among members of Indian Tribes, in accordance with the possession thereof, and for damages for the common law, are valid.

the wrongful detention thereof. The parties

will be hereinafter referred to as they ap3. Marriage Om 40(4), 51-Illicit intercourse

during courtship does not as matter of law peared in the court below.
incapacitate parties from subsequently as-

In his second amended petition the plainsuming common-law marriage relations; co- tiff alleged that the land in controversy conhabitation after illicit relations presumed to stituted the homestead allotment of one Amos be matrimonial.

Tiger, a full-blood Creek Indian, duly enIllicit intercourse during courtship does not, rolled as such, opposite roll No. 7915, of the as a matter of law, incapacitate the parties approved rolls of the five civilized tribes of from afterwards assuming marriage relations, Indians who had died intestate on the 31st and where it is shown that the parties after. I of December, 1909, and claimed the title and wards cohabited together in good faith and held right of possession to said lands as the sole themselves out as husband and wife, the presumption obtains in harmony with the general surviving issue of a valid common-law marpolicy of the law to promote and encourage riage, contracted by the deceased allottee, good morals that the parties had reformed, Amos Tiger, and Lena Tiger, née Pigeon, hy and the change from illicit to matrimonial re which he inherited said land in fee simple. lations may occur, although the occasion or pre The defendant claimed title through a deed

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

error,

executed on the 28th day of March, 1910, by, had illicit intercourse with Amos during their Salina Powell, a surviving sister of the de- courtship is relied upon to establish that the ceased allottee, Amos Tiger, and Charles W. relation of the parties was immoral in its Powell, her husband, joined in by the said inception, and could not ripen into a valid Lena Tiger, née Pigeon, to B. 0. Sims, who marriage. were alleged to be the only heirs at law of [3] Upon a re w of the athorities, and the said Amos Tiger.

especially after reviewing the case of White By subsequent conveyances the defendant v. White, 82 Cal. 427, 23 P. 276, 7 L. R. A. 799, claimed title to all of said land, and filed an cited and relied upon by the defendant, we answer in which he asked that the title be do not think that illicit intercourse during quieted in him. A jury was waived, and on courtship incapacitates the parties from aftthe 26th day of February, 1918, the cause erwards assuming marriage relations, and was tried to the court, which rendered a where it is shown that the parties afterwards general judgment and finding in favor of the cohabited together in good faith and held plaintiff upon all issues involved, and quieted themselves out as husband and wife, the prethe title of the plaintiff in said land against sumption would obtain, we think, in harmony the claim of the defendant.

with the general policy of the law to promote From the judgment so rendered, the defend- and encourage good morals, that the parties ant appeals to this court assigning several er- had reformed, and that the change of relarors. It is contended that the finding of the tion assumed by the parties in attempting to trial court to the effect that Amos Tiger, in live together in good faith as husband and his lifetime, was lawfully married to Lena wife sufficient to rebut the presumption of Tiger, née Pigeon, and that plaintiff was the adulterous intent evidenced by illicit interlawful issue of said marriage, born during course during courtship. As was said by the lawful wedlock, is not supported by the evi- Supreme Court of California, in the case of dence, and that the trial court erred in refus- White v. White, supra: ing to set the judgment aside and grant the defendant a new trial. With this contention to continue until the evidence shows that the

“The state of illicit intercourse is presumed we cannot agree.

intercourse of the parties has become matri. [1] The conclusion of the trial court is monial. * No greater change than that supported, we think, by the testimony of above indicated is required. There are some various witnesses, many of whom were neigh- expressions in opinions in the cases of Cunbors and associates of Amos Tiger and Lena ningham y. Cunningham, and Lapsley v. GrierPigeon, to the effect that they lived together ticular examination of the above cases, it is

son, which seem to go further. But on a paras husband and wife and held themselves out manifest that the

court that decided as such to the public for a number of years these cases did not intend to hold that in the and were so recognized in the community case where the intercourse in its inception was where they resided. While the exact date on illicit, that that circumstance prevented the which they commenced matrimonial relations establishment of the marriage status by the does not clearly appear in the evidence, the subsequent conduct of the parties showing a conduct of the parties and holding them pute that they had interchanged the requisite

general, undivided, and uniform habit and reselves out as husband and wife for a num- matrimonial consent. * It should be ber of years during which time a child, stated here that a change from illicit to licit Tache, was born, concerning whose legitima- or matrimonial relations may occur and be satcy no serious question had ever been raised, isfactorily established, although the precise and the conduct of the public generally are time or occasion cannot be clearly ascertained." sufficient, we think, to raise the presumption that a common-law marriage contract had (2) Applying the rule of the above case to been entered into within the rule of law laid the facts in the instant case we are of the down in the case of Reaves v. Reaves, 15 opinion that proof of illicit intercourse durOkl. 240, 82 P. 490, 2 L. R. A. (N. S.) 353; ing courtship is insufficient to establish that Linsey v. Jefferson, 68 Okl. 156, 172 P. 641, the subsequent relation maintained by the and other Oklahoma cases recognizing the parties was not matrimonial. It is next convalidity of common-law marriages. In addi-tended by the defendant conceding & comtion to these circumstances, clearly estab- mon-law marriage was entered into by Amos lished by the great preponderance of the evi- Tiger and Lena Pigeon, that said marriage dence, there is testimony in the record that was not a valid marriage because neither the Lena and Amos expressly assumed matri- / laws of the Creek Nation nor the laws of monial relations toward each other after the state of Arkansas, in force in the Indian which they continued the relation of husband Territory at the time the alleged marriage in and wife.

question was contracted, recognized a comIt is seriously contended by the defendant mon-law marriage as a lawful marriage, and in his brief that the uncontroverted evidence he cites the cases of Furth v. Furth, 97 Ark. showed that the relation assumed by Amos 272, 133 S. W. 1037, Ann. Cas. 1912D, 595 and Lena was meretricious and not matri-|(decided January 16, 1911) where the Su. monial, and the admission of Lena that she preme Court of Arkansas held:

*

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